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Eugene v. International-Matex Tank Terminals LLC

United States District Court, E.D. Louisiana

September 27, 2019

PAUL EUGENE
v.
INTERNATIONAL-MATEX TANK TERMINALS LLC

         SECTION: “B” (1)

          ORDER AND REASONS

         Before the Court are defendant International-Matex Tank Terminals LLC’s motion to dismiss (Rec. Doc. 10), plaintiff Paul Eugene’s opposition (Rec. Doc. 15), and defendant’s reply memorandum (Rec. Doc. 20). For the reasons discussed below, IT IS ORDERED that the motion to dismiss under Federal Rule of Civil Procedure 12(b)(5) is GRANTED in part, to enter dismissal without prejudice under Federal Rule of Civil Procedure 4(m). FACTS AND PROCEDURAL HISTORY Plaintiff is a resident of Louisiana. See Rec. Doc. 2 at 2. Defendant International-Matex Tank Terminals LLC (“IMTT”) is a Delaware corporation with a principal place of business in New Orleans, Louisiana. See id. IMTT previously employed plaintiff at its St. Rose terminal. See Rec. Doc. 10-1 at 1.

         Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, the Americans with Disability Act, and other state laws. See Rec. Doc. 2. Plaintiff alleges that his termination from IMTT was illegal and he suffered resulting damages including loss of income, financial and emotional distress, and suffering and loss of enjoyment of life. See id. at 3. Plaintiff seeks, inter alia, compensatory, real, and punitive damages. See id. at 4. Plaintiff also prays that his employment with IMTT be reinstated. See id.

         Plaintiff filed this action on May 24, 2018. See Rec. Doc. 10-1 at 3. Therefore, he was obligated to serve IMTT no later than August 22, 2018. See id. Plaintiff served IMTT thirteen days after that deadline, September 4, 2018. See id. at 4.

         On October 16, 2018, IMTT filed a motion to dismiss for insufficient service or, in the alternative, failure to state a claim. See Rec. Doc. 10. On November 13, 2018, plaintiff filed a response in opposition. See Rec. Doc. 15. On November 27, 2018, IMTT filed a reply memorandum. See Rec. Doc. 20.

         PARTIES’ CONTENTIONS[1]

         A. Defendant’s Contentions

         IMTT seeks dismissal pursuant to Rule 12(b)(5) because plaintiff failed to serve IMTT within 90 days after the filing of his petition as required under FRCP 4. See id. at 1. Plaintiff filed his petition through counsel on May 24, 2018. See Rec. Doc. 10-1 at 3. Therefore, he was obligated to serve IMTT no later than August 22, 2018. See id. Plaintiff served IMTT thirteen days after the deadline, September 4, 2018. See id. at 4. Without a good-cause explanation, the only conclusion is that plaintiff failed to timely serve IMTT and his lawsuit should be dismissed with prejudice. See id. “A dismissal without prejudice would be futile in this case because [p]laintiff’s deadline to file suit on his claims [has] passed.” Id. When plaintiff failed to effectuate timely service, his claims expired as if they were never filed. See id. at 5. IMTT believed that it would no longer face this lawsuit after it succeeded before the EEOC and non-suit by plaintiff. See id. Plaintiff has exhibited a clear record of delay such that his claims must be dismissed with prejudice. See id.

         In its reply, IMTT continues to urge that plaintiff’s petition should be dismissed. See Rec. Doc. 20 at 2. Plaintiff’s in forma pauperis status does not provide good cause to excuse his failure. See id. Plaintiff was not required to hire a private process server at $250.00 per hour. See id. Pursuant to the FRCP, plaintiff not only had the ability, but also the right, for the U.S. Marshal to effect service of this lawsuit on his behalf. See id. at 2-3. Plaintiff apparently never requested service by the U.S. Marshal. See id. at 3. The Fifth Circuit has affirmed dismissal of a lawsuit when an in forma pauperis plaintiff failed to timely request service by the U.S. Marshal. See id. Furthermore, in the Fifth Circuit, a suit dismissed for failure to serve is treated as abandonment under state law. See id. Therefore, even if this case is dismissed without prejudice, the dismissal would operate as a dismissal with prejudice because the prescriptive period has not been interrupted considering plaintiff’s failure to timely serve IMTT. See id. at 3-4.

         B. Plaintiff’s Contentions

         Plaintiff concedes that he perfected service of process on IMTT 13 days late; however, he contends that dismissal based on insufficient service of process is not appropriate considering the totality of the circumstances here. See Rec. Doc. 15 at 2. At all relevant times here, plaintiff was proceeding in forma pauperis and reportedly operating in good faith, in an effort to serve IMTT in Baton Rouge, Louisiana, through personal service. He attributes late service to his financial inability to hire a process server at $250.00 an hour. See id.

         He further argues that dismissal without prejudice would not be futile as the filing of the first complaint interrupted prescription and plaintiff would have additional time to re-file the complaint. See id. Plaintiff received his right to sue letter from the EEOC on February 25, 2018, making his complaint filing deadline May 26, 2018. See id. He posits that since the instant complaint was filed on May 24, 2018, this would allow an additional two days to re-file his complaint if it were dismissed without prejudice. See id. He proposes that in the interest of judicial efficiency and equity, the instant complaint should not be dismissed and even if it were, the dismissal should be without prejudice. See id. at 3.

         LAW AND FINDINGS

         Federal Rule of Civil Procedure 12(b)(5) allows a party to move to dismiss a case for insufficient service of process. “In the absence of valid service of process, proceedings against a party are void.” Aetna Bus. Credit, Inc. v. Universal Décor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981). “When service of process is ...


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